KLAYMAN et al v. JUDICIAL WATCH, INC. et al

Filing 526

MEMORANDUM OPINION AND ORDER Regarding Counter-Plaintiffs' Proposed Introduction at Trial of Exhibits Through Deposition Testimony of Maureen Otis. Signed by Judge Colleen Kollar-Kotelly on March 9, 2018. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN,
Plaintiff,
v.

Civil Action No. 06-670 (CKK)

JUDICIAL WATCH, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(March 9, 2018)
Counter-Plaintiffs Judicial Watch, Inc. (“Judicial Watch”) and Thomas J. Fitton seek to
introduce Exhibits 73-76, 79, 83, 86, and 87 through the deposition testimony of Maureen Otis at
trial on March 9, 2018, in support of their counterclaims. 1 Defs.’ Suppl. Notice Regarding
Authenticity for Exs. to Be Used on Thursday/Friday, Mar. 8-9, 2018, ECF No. 515 (“Suppl.
Notice”). The Court has a standing order calling for daily briefing on authenticity in order to
resolve any such objections outside of the jury’s presence and thereby facilitate an efficient trial.
See Min. Order of Mar. 2, 2018. Counter-Plaintiffs did not explain support for the authenticity of
these exhibits beyond claiming that “[e]ach of these exhibits are [sic] identified and authenticated
by Ms. Otis’ deposition testimony. Each exhibit contains the exhibit sticker for the deposition to
assist in authentication.” Suppl. Notice at 1.
In response to the filing of Counter-Plaintiffs’ Supplemental Notice, Counter-Defendant
made only the blanket objection that “[t]he proposed exhibits should be excluded and notification
is almost 12 hours late on the morning of trial and violates the court’s order. Plaintiff lacks time
to review as does the court.” Pl.’s Notice of Objs. Regarding Authenticity of Proposed Exs. for
Mar. 8/9, 2018, ECF No. 518, at 2 (“Counter-Def.’s Resp.”). However, Counter-Plaintiffs’
Supplemental Notice was filed at 9:10 PM on March 7, 2018, not on the morning of trial. CounterPlaintiffs also had given notice to the Court and Counter-Defendant on March 6, 2018, that they
would be making a supplemental filing to account for exhibits that they proposed to introduce on
Thursday, March 8, 2018. Lastly, these exhibits were not actually introduced on March 8, 2018,
after all; Counter-Defendant has not taken the opportunity over the ensuing more than 36 hours
since the Supplemental Notice was filed to provide any more definitive objections. Accordingly,

1

At trial on March 9, 2018, Counter-Plaintiffs also intend to read excerpts of the deposition
testimony of Stephanie DeLuca, which will involve previously admitted Exhibit 3. Defs.’ Suppl.
Notice Regarding Authenticity for Exs. to Be Used on Thursday/Friday, Mar. 8-9, 2018, ECF No.
515. At trial on March 8, 2018, Counter-Plaintiffs read excerpts of the deposition testimony of
Phil Sheldon but did not seek to introduce exhibits through that testimony.
1

the Court shall deem Counter-Defendant as not having made any specific objections and in turn
shall address the authenticity of the relevant exhibits in rather summary fashion.
Upon consideration of the parties’ briefing, 2 the relevant legal authorities, and the record
as a whole, the Court rules as follows on the authenticity of Counter-Plaintiffs’ exhibits that they
propose to introduce through the deposition testimony of Ms. Otis.
I. LEGAL STANDARD
The threshold for proof of authenticity is low; Counter-Plaintiffs need only “produce
evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R.
Evid. 901(a).
In at least one instance, the Court shall draw on the standard established by the Federal
Rules for the so-called business records exception to the hearsay rule. “A record of an act, event,
condition, opinion, or diagnosis” is not excluded if
(A) the record was made at or near the time by—or from information transmitted
by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6) (“Records of a Regularly Conducted Activity”).
Authentication of at least one other exhibit relies in part on the testimony of a witness with
knowledge that “an item is what it is claimed to be,” Fed. R. Evid. 901(b)(1), or testimony
conveying “[a] nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that
was not acquired for the current litigation,” id. 901(b)(2).

2

The Court’s consideration has focused on the following documents:
•
•

Defs.’ Suppl. Notice Regarding Authenticity for Exs. to Be Used on Thursday/Friday, Mar.
8-9, 2018, ECF No. 515 (“Suppl. Notice”).
Pl.’s Notice of Objs. Regarding Authenticity of Proposed Exs. for Mar. 8/9, 2018, ECF No.
518 (“Counter-Def.’s Resp.”).
2

II. DISCUSSION3
Exhibit 73 is an Internal Revenue Service W-9, submitted on behalf of “Larry Klayman
d/b/a/ Saving Judicial Watch.” Dep. of Maureen Otis, Klayman v. Judicial Watch, Inc., Civil
Action No. 1:06-CV-00670, at 48:1-48:5 (July 22, 2008) (“Dep. of Maureen Otis”). Ms. Otis
identifies the document, indicates that she submitted it, and notes that she received it from CounterDefendant’s office. Id. at 48:1-48:8, 48:16-21. Ms. Otis also identifies a second page of the
document containing a copy of Counter-Defendant’s driver’s license as well as some handwritten
notes that she assumes is the handwriting of someone in Counter-Defendant’s office. Id. at 48:924. While the Court may otherwise be inclined to exclude the handwriting, Ms. Otis does identify
the handwritten address as her own. Accordingly, in light of the testimony and the document
itself, the Court finds sufficient evidence that Exhibit 73 is authenticated.
Exhibit 74 is a signed version of an agreement between American Caging, Saving Judicial
Watch, and Diener Consultants. Ms. Otis identifies the contract, indicates that she created and
executed it, and explains the process of entering into this contract. See id. at 49:3-5, 49:14-50:10.
Moreover, there is a signature above her printed name on this contract, which recognizes her title
as President of American Caging. In light of the testimony and the document itself, the Court
finds sufficient evidence that Exhibit 74 is authenticated.
Ms. Otis identifies Exhibit 75 as a “sample” cage and code report that she “just printed
out,” notes that this is “the very first” cage and code report for Klayman for U.S. Senate, recognizes
Counter-Defendant as a recipient of a copy of the cage and code reports, and proceeds to describe
the daily process of compiling such reports based on mail received, donors, nondonors, and money
collected. Id. at 53:16-54:8. Based on Ms. Otis’s description, this record has marks of a business
record under Federal Rule of Evidence 803(6), insofar as this report is evidently made by Ms. Otis
or her staff; such reports were regularly produced and evidently kept; Ms. Otis is apparently a
custodian of the document; and the Court does not have reason to doubt the trustworthiness of this
document. As discussed above, Counter-Defendant has not identified a specific objection. In
light of the testimony and the document itself, the Court finds sufficient evidence that Exhibit
75 is authenticated.
Exhibit 76 is an agreement between American Caging and Saving Judicial Watch. Ms.
Otis explains that the underlying document was originally an agreement between American Caging
and another organization but that it is her understanding that Counter-Defendant made the
handwritten edits to render “Larry Klayman d/b/a Saving Judicial Watch” as the new counterparty.
Id. at 57:9-23 (stating, e.g., “[t]his is his handwriting”). She also observes the initials “L.K.” next
3

In the following discussion, the Court shall refer to the current labeling of Counter-Plaintiffs’
exhibits. The deposition of Ms. Otis used different labels. Counter-Plaintiffs identified the linkage
between current and deposition labeling in a copy of the deposition transcript provided to the Court
and Counter-Defendant. Exhibits 75 and 76 were not specifically identified by Counter-Plaintiffs
in their copy of the deposition transcript, but the Court has subsequently confirmed that these
exhibits correspond with deposition Exhibits 9 and 10, respectively.
3

to the change as well as at the bottom of the page. Id. at 58:4-8. Ms. Otis’s testimony lays adequate
foundation that this document is what it purports to be. See Fed. R. Evid. 901(a), (b)(1), (b)(2).
In light of the testimony and the document itself, the Court finds sufficient evidence that
Exhibit 76 is authenticated.
When shown Exhibit 79, Ms. Otis identifies it without further prompting as “the very first
cage report [American Caging] prepared for Saving Judicial Watch.” Dep. of Maureen Otis at
71:7-8. The Court is satisfied that Ms. Otis is familiar with the document. There are what appear
to be some redactions of certain total figures, which she does not discuss. However, these do not
detract from Ms. Otis’s definitive identification of the document. In light of the testimony and
the document itself, the Court finds sufficient evidence that Exhibit 79 is authenticated.
Ms. Otis is less definitive in identifying Exhibit 83. “It looks like it’s an email from me
to Larry saying here is our first reply. So it must have been the first piece of mail that we received
for Saving Judicial Watch. Either that or it’s the first piece of mail we received for a while . . . .”
Id. at 77:21-78:2. She does not evince any recollection of this particular communication, but she
proceeds to identify this as a sample Saving Judicial Watch reply device and credit card
information that American Caging would receive. See id. at 78:6-78:11. She also observes a
handwritten note on the reply device that she attributes to the donor, and she comments that “a lot
of times that will happen” on the reply devices. Id. at 78:12-78:16. Although the Court has
previously considered Counter-Defendant’s handwriting objections, the Court shall not explore
further where Counter-Defendant has not specifically raised that objection. The Court is satisfied
based on her description of the process that this document is what it appears to be. See Fed. R.
Evid. 901(a). In light of the testimony and the document itself, the Court finds sufficient
evidence that Exhibit 79 is authenticated.
Exhibit 86 is an email chain between Ms. Otis, Counter-Defendant, and Response
Unlimited employees that discusses recent high-value donations to Saving Judicial Watch. Ms.
Otis’s hedges in her discussion of the email chain— e.g., “let’s see, I’m attaching copies of
checks”— imply that she does not recall this particular thread. See Dep. of Maureen Otis at 81:1682:7. However, her further discussion of communications with Counter-Defendant and Response
Unlimited about the method for handling the high-value donations demonstrates her familiarity
with this circumstance. The authors of the several emails discuss some confusion they are having
about the checks at issue, but that does not go to the authenticity of the email thread itself.
Moreover, the email specifically identifies two of the three checks that are attached and comments
that there are three total checks attached. The Court has no reason to believe that the email thread
is other than it appears to be. See Fed. R. Evid. 901(a). In light of the testimony and the
document itself, the Court finds sufficient evidence that Exhibit 86 is authenticated.
Ms. Otis identifies Exhibit 87 as an invoice sent by Counter-Defendant’s legal assistant in
which the Klayman Law Firm seeks payment from funds raised for Saving Judicial Watch. Again,
she does not appear to be familiar with this particular document, but she confirmed that the
Klayman Law Firm had made such requests more than once. See Dep. of Maureen Otis at 84:184:18. Ms. Otis does not expressly discuss, however, nor does the deposition otherwise clarify,
4

why there appear to be two sets of invoices and wiring instructions, one to “The Klayman Law
Firm” and the other to “Larry Klayman,” for what appear to be the same activity and dollar amount.
Ex. 87 at 5-7. For lack of discussion of the “Larry Klayman” version, the Court shall exclude it.
In light of the testimony and the document itself, the Court finds sufficient evidence that,
with the exception of the last three pages of the document, Exhibit 87 is authenticated.
***
ORDER
The following exhibits proposed for introduction through the deposition testimony of
Maureen Otis have been authenticated on the above-cited grounds: Exhibits 73-76, 79, 83, 86,
and 87 (except last three pages).
The Court shall exclude the last three pages of Exhibit 87 on the present record.
SO ORDERED.
Dated: March 9, 2018
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

5